RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-03015
            INDEX CODE:  131.00

            COUNSEL:  GARY MYERS

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

She be retired in the grade of staff sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel states that the applicant’s demotion  was  singularly  inappropriate
because by its own conduct and long term knowledge  of  her  proclivity  for
weight gain, the Air Force by 1997, condoned and accepted her  circumstances
which she desperately tried to alter but could not.  For 15  years  the  Air
Force knew this otherwise healthy woman had  a  weight  problem.   Yet,  not
until the thirteenth and one half year of that knowledge did the  Air  Force
decide to do anything adverse.  Not until  October  1996,  was  any  adverse
action taken (a series of Letters of Reprimand  (LORs)).   The  Air  Force’s
failure to take any adverse action against applicant prior to her 17th  year
of service acts as an equitable estoppel to taking a demotion action at  the
end of her career.

Applicant diligently participated in the weight  management  program  (WMP).
The WMP has always been a bankrupt policy based on bad  science.   There  is
no doubt that first, hydrostatic testing, and second,  electrical  impedance
testing is far more accurate and superior to empirical  tape  testing.   The
applicant’s body fat changed not with weight, but with the tester.

Further proof that the demotion action should be  ignored  is  the  26  June
1998  declaration  by  the  Secretary  of  the  Air  Force.    This   action
underscores the Air Force’s ambivalence and outright  confusion  as  to  the
meaning of WMP failure.

The decision to administratively separate the applicant  is  another  reason
why the demotion action was inappropriate.  A demotion is  an  extraordinary
action, not to be done when other actions affording greater due process  are
available.  A demotion action has virtually no due process  associated  with
it.  The administrative separation  action  and  the  demotion  action  were
abuses of command discretion, not because in an  absolute  sense  they  were
unavailable to command, but rather because the manner  in  which  they  were
initiated was inappropriate.  At the eleventh hour  the  command  recognized
their abuse  as  well  by  requesting  cancellation  of  the  administrative
separation  action  and  acknowledging  the  applicant  was   striving   for
compliance and the administrative separation action was excessive.

Applicant’s complete response is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular  Air  Force  on  22  May  1979.   She  was
progressively promoted to the grade of staff sergeant with a  date  of  rank
(DOR) of 1 April 1985.  Her last reenlistment was on  10  January  1992,  in
the grade of staff sergeant for a period of six (6) years.

The applicant’s Weight and Body Fat Management Program (WBFMP) file  is  not
available because it was either destroyed or apparently given  to  her  upon
her retirement.

The  applicant’s  available  history  of  Individual   Record   for   Weight
Management and  Fitness  Improvement  Training  Program  (Phase  II)  is  at
Exhibit A.  There is no record for the initial time  period  when  applicant
was first placed on the WMP.

According to the WMP documents provided by the  applicant,  in  addition  to
the available records, the following information was obtained:

      After receiving diet counseling,  a  review  of  her  medical  records
indicates on 19 July 1984, she was seen for a weight  evaluation.   She  was
64” tall, weighed 143 ¾ pounds, and her maximum allowable weight  (MAW)  was
139.

      A 14 August 1984 medical evaluation indicated  the  applicant  weighed
146 pounds and her MAW was 139.

      An 18 March 1987 entry in  her  medical  records  indicates  that  she
weighed 155 pounds and it was planned  that  she  enter  into  the  WMP  and
exercise program.  She received a nutrition assessment  and  was  instructed
about a 1200 calorie reducing diet.

      A 25 October 1989 entry in her medical records  reflects  she  weighed
148 pound and her MAW was 148.

      On 21 December 1990 she  was  again  reevaluated  at  her  commander’s
request concerning her weight.  She weighed 153 pounds with a  MAW  of  144,
which had been adjusted by 4 pounds.


      On 8 August 1991, she was enrolled in the  Weight  Management  Program
(WMP).

      On 2 October 1996, the applicant received a Letter of Reprimand  (LOR)
for violating AFI 40-502, WMP.  She was identified as being in violation  of
the instruction during her monthly weight check on 27 September  1996.   She
exceeded her body fat maximum by 6%.  This was her  fourth  failure  in  the
WMP.

      On 20 May 1997, the applicant received an LOR for  failure  to  reduce
body fat or weight at  the  rate  described  for  satisfactory  progress  in
accordance with AFI 40-502,  the  WMP.   She  was  required  to  decrease  1
percent body fat or 3 pounds per month.  Instead, she weighted in  6  pounds
heavier.

      Effective 3 December  1997,  the  applicant  was  demoted  from  staff
sergeant to senior airman for failure to  maintain  her  weight  within  Air
Force standards.

      On 9 February 1998, the applicant  received  an  LOR  for  failure  to
reduce body fat or weight at the rate described for  satisfactory  progress.
The applicant was required to decrease 1 percent body fat or  3  pounds  per
month.  Instead, she gained 1 percent body fat and 4 pounds since  her  last
weight check.

      In March 1998, she was evaluated in endocrinology clinic to  rule  out
any medical reason for her weight gain.

      She was again seen in internal medicine clinic in July 1998 to follow-
up on her possible endocrinology problem.  She was to be  reevaluated  after
laboratory tests were completed.

      On 17 July 1998,  the  applicant  underwent  knee  surgery.   She  was
diagnosed with lateral compression of  the  right  patella.   The  procedure
performed was right knee arthroscopy and lateral retinacular  release.   She
was on profile from 27 May through 1 December 1998 that restricted her  from
physical activity.

On 26 June 1998, Secretary of the Air Force determined  that  the  applicant
served satisfactorily in the higher grade of staff  sergeant,  and  directed
the applicant’s advancement to the grade of staff sergeant  on  the  Retired
List effective the date of completion of all required service.

On 10 July 1998, Department of the Air Force, Special  Order  AC-xxxxxx  was
issued reflecting that the applicant will be advanced to the grade of  staff
sergeant on the Air Force Retired List effective 22 May 2009.

On 19 August 1998, she was notified of  her  commander’s  recommendation  to
initiate discharge action against  her  for  failure  to  make  satisfactory
progress in the Weight Management Program.

On 12 November 1998, the applicant’s commander cancelled the  administrative
separation to allow applicant to retire as projected on 31  May  1999.   The
commander indicates in his request that the applicant has  served  honorably
for 19 ½ years.  He does not believe separation prior to her  retirement  is
the appropriate action at this point in her career nor is  it  in  the  best
interest of the Air Force.  Additionally, she is  now  showing  satisfactory
progress in the WMP during her last weigh-in and she continues to display  a
professional attitude on and off duty.

On 31 May 1999, the applicant was relieved from active duty and  on  1  June
1999, retired in the grade of senior airman, under the provisions of AFI 36-
3203, Maximum Service or Time-In-Grade.  She served a total of 20 years  and
9 days total active duty.

Applicant’s total maximum body fat percentage standard is 32%.

Applicant’s available medical records indicate  the  following  body  weight
and body fat percentage for 1997:

      DATE WEIGHED     WEIGHT/BODY FAT %

* 24 Jan 97                                158/34%
* 27 Feb 97                                154/33%
* 26 Mar 97                                149/34%
*  7 May 97                                156/34%
   9 Jun 97                                154/32%
*  9 Jul 97                                158/33%
* 15 Aug 97                                166/34%
* 24 Sep 97                                166/37%

*Unsatisfactory progress which led to demotion action

Applicant's OER/OPR profile follows:

      PERIOD ENDING    OVERALL EVALUATION

      24 Jul 92              3
      24 Jul 93              3
       6 May 94              4
       6 May 95              4
      30 May 96              4
      30 May 97              4
      30 May 98              4

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Field Operations Branch, AFPC/DPSFM,  reviewed  this  application
and states that by the applicant’s own  admission,  she  was  on  the  WBFMP
since 1991.  The applicant provided  documents  to  confirm  her  status  in
Phase II, six-month observation period from September 1994  through  January
1995. In October 1995 she received her first unsatisfactory period  and  was
reentered into  Phase  I.   In  September  1996,  she  received  her  second
unsatisfactory period and once again reentered Phase I.  In  May  1997,  the
applicant  received  her  third  unsatisfactory  period.   In  July  through
September 1997 she had accumulated six unsatisfactory periods.  She was  not
demoted until November 1997.  There  are  a  total  of  nine  unsatisfactory
periods annotated in the information the applicant provided.  The  applicant
should have been demoted on her third unsatisfactory period, and  discharged
on her fourth.  She was afforded at least five more  unsatisfactory  periods
and still was  allowed  to  retire.   Therefore  they  recommend  denial  of
applicant’s request.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The   Chief,   Inquiries/AFBCMR   Section,   Enlisted   Promotion    Branch,
AFPC/DPPPWB, also reviewed this application and states  that  on  22 October
1997, the applicant’s commander notified her of his intent to  recommend  to
the demotion authority that she  be  demoted.   The  applicant  nonconcurred
with the proposed  demotion  action,  consulted  counsel,  and  submitted  a
letter on 31 April 1997 on her behalf.  After  considering  the  information
presented, her commander still felt demotion was appropriate  and  continued
processing the case to the demotion  authority.   The  demotion  action  was
found legally sufficient, and the applicant was reduced to senior airman  on
3 December 1997.  She acknowledged receipt of the  demotion  on  1  December
1997, and indicated she would appeal.   Although  the  case  file  shows  no
documentation regarding the appeal, it was apparently denied.  The  demotion
action taken against the applicant was procedurally correct and there is  no
evidence there were any irregularities or  that  the  case  was  mishandled.
However, should the AFBCMR  grant  the  applicant’s  request,  she  will  be
entitled to have her former grade of staff sergeant reinstated with  a  date
of rank of 1 April 1985.  Therefore, they defer  to  the  recommendation  of
AFPC/DPSFC.

A complete copy of the Air Force evaluation is attached at Exhibit D.

The Directorate of Personnel Program Management, AFPC/DPPRRP, also  reviewed
this application and states that the law which  allows  for  advancement  of
enlisted members of the Air Force, when their active  service  plus  service
on the retired list totals 30 years, is very  specific  in  its  application
and intent.  On 26 June 1998, the SAF/PC made  the  determination  that  the
applicant did serve satisfactorily on active duty  in  the  grade  of  staff
sergeant and directed advancement to  that  grade  upon  completion  of  all
required service.  In accordance with Section 8961, Title  10,  U.S.C.,  the
applicant was correctly retired in the grade of  senior  airman,  which  was
the grade she held on the date  of  her  retirement.   There  are  no  other
provisions of law that would allow  for  advancement  of  enlisted  members.
All criteria of the pertinent laws (Section 8961 and 8964) have been met  in
this regard and no error or injustices occurred  in  her  retirement,  grade
determination or advancement action.  Therefore, they  recommend  denial  of
applicant’s request.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant reviewed the advisory  opinions  and  states  that
the opinions deal directly with the procedural  correctness  of  applicant’s
demotion and retirement.  They do not dispute that what was done could  have
been done procedurally.   Their  position  is  one  of  equity  and  one  of
recognizing, as the Navy has, the bankrupt  nature  of  the  weight  control
program.  Condonation is not addressed in any  fashion  by  these  opinions,
except by tacit recognition that there  was  condonation.   In  AFPC/DPSFM’s
advisory  it  is  tacitly  recognized  that  the  Air  Force  condoned   the
applicant’s circumstance.

Counsel’s complete response is attached at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed this application and states that  there
is no evidence that an underlying  medical  condition  contributed  to  this
individual’s weight problems, and reinstatement of her highest grade to  the
time of her retirement  is  not  recommended.   She  has  been  approved  by
Secretarial Authority for advancement on the retired  list  to  this  higher
grade upon reaching completion of all required service at the 30-year  point
which will come in 2009.  The BCMR Medical  Consultant  is  of  the  opinion
that no change in the records is warranted and  the  application  should  be
denied.

A complete copy of the Air Force evaluation is attached at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel for the applicant  reviewed  the  additional  advisory  opinion  and
states that the advisory demonstrates both the absurdity and  the  hypocrisy
of the weight management program.   If  the  Air  Force  kept  applicant  on
active duty because  of  her  “exemplary  military  service,”  they  clearly
condoned her noncompliance.  He asks, “Why may  we  ask  rhetorically  would
any  well  run  organization  terminate  exemplary  personnel  based  on  an
empirical  standard  that  does  not  produce  valid   results   for   every
participant?”

Counsel’s complete response is attached at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence  of  probable  error  or  injustice.   We  took  notice   of   the
applicant's complete submission in judging the merits of the case;  however,
we agree with the opinions and recommendations of the Air  Force  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  In this  respect,  we  note  that
the  applicant  was  afforded  ample  opportunity  to  maintain  Air   Force
standards before any demotion action was taken.   In  addition,  it  appears
that not  only  her  exemplary  service,  but  also  her  medical  condition
pertaining to her knee surgery and convalescence,  were  factored  into  her
commander’s  request  for  cancellation  of  the  administrative   discharge
action, thereby allowing her to be retained on active  duty  until  she  was
eligible for retirement.  Interestingly, her commander noted that  following
this demotion action and her post-operative recovery period,  she  began  to
show satisfactory progress on the  weight  management.   We  note  that  the
applicant will be advanced on  the  retired  list  to  the  grade  of  staff
sergeant upon completion of 30 years of total service.   Therefore,  in  the
absence of evidence  to  the  contrary,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 26 October 2000, under the provisions of AFI 36-2603:

                  Mr. Henry Romo, Jr., Panel Chair
                  Mr. Laurence M. Groner, Member
                  Mr. John E. Pettit, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 3 Dec 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSFM, dated 31 Mar 00.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 13 Apr 00.
   Exhibit E.  Letter, AFPC/DPPRRP, dated 10 May 00, w/atchs.
   Exhibit F.  Letter, SAF/MIBR, dated 19 May 00.
   Exhibit G.  Letter, Counsel, dated 12 Jun 00.
   Exhibit H.  Letter, BCMR Medical Consultant, dated 20 Sep 00.
   Exhibit I.  Letter, SAF/MIBR, dated 22 Sep 00.
   Exhibit J.  Letter, Counsel, dated 6 Oct 00.




                                HENRY ROMO, JR.
                                Panel Chair